UNITED STATES v. MORENO HERNANDEZ AKA (2018)

MEMORANDUM **

Ricardo Moreno-Hernandez appeals his jury conviction for violating 8 U.S.C. § 1326. We have jurisdiction over this appeal, 28 U.S.C. § 1291, and affirm.

The district court did not abuse its discretion in denying Moreno-Hernandez’s motion for a new trial on the grounds of his excluded prior consistent hearsay statement to Immigration & Customs Enforcement officials in September 2015 that he was born in Santa Monica, California. The district court correctly identified Federal Rule of Evidence 801(d)(1)(B) and the four-element test from United States v. Collicott, 92 F.3d 973, 979 (9th Cir.), as amended (Oct. 21, 1996), that guide the admission of prior consistent hearsay statements. The district court’s application of this Rule to Moreno-Hernandez’s prior consistent hearsay statement is not implausible or illogical. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

The prosecution’s inadvertent misstatement does not rise to the level of prosecutorial misconduct, and does not constitute plain error. See, e.g., United States v. Lloyd, 807 F.3d 1128, 1168 (9th Cir. 2015) (“A prosecutor’s inadvertent mistakes or misstatements are not misconduct.”).

For these reasons, Moreno-Hernandez is not entitled to a new trial.

AFFIRMED.